Rowe v. May

• Decision Date: 13 March 1940
• Docket Number: No. 4513.,4513.
• Citation: 44 N.M. 264,101 P.2d 391
• Parties: ROWEv.MAY et al.
• Court: New Mexico Supreme Court

44 N.M. 264

101 P.2d 391

ROWE

v.MAY et al.

No. 4513.

Supreme Court of New Mexico.

March 13, 1940.Rehearing Denied April 30, 1940.

Appeal from District Court, Bernalillo County; Bryan G. Johnson, Judge.

Action by Edna M. Rowe against Minnie P. May and others for a determination of rights under a deed. From an adverse judgment, the plaintiff appeals.

Affirmed.

Conditions which, if enforced, work a forfeiture or tend to destroy an estate are not favored and are construed strictly.

Barnes & Corey, of Albuquerque, for appellant.

W. A. Keleher, A. H. McLeod, and F. O. Westerfield, all of Albuquerque, for appellees.

MABRY, Justice.

The question here involves an interpretation of certain language contained in a deed and a determination whether, under such language and the facts and circumstances shown, a building restriction upon the lot in question is of such a character as to be binding upon appellant. More particularly there is involved the question of whether the building restriction language of the deed is a covenant running with the land, and which is for the benefit of all purchasers and owners of lots within the area, or whether the language constitutes merely a condition subsequent, enforceable only by the original grantor, and those in privity with him, a right not assignable.

The area in question is in a residential section within the city of Albuquerque and known as the Luna Place Addition. Appellant, hereinafter to be referred to as the plaintiff, desiring to build an apartment house within the area upon certain lots recently purchased and meeting with objection from other property owners therein, brought suit against a large number of defendants to have determined her rights under said deed. She prayed for an adjudication against defendants (which included all owners and lien-holders of property within the addition) that the restrictive covenants or conditions in the muniments of title under which all the parties held are void and of no effect and that plaintiff at least should have the right to enjoy the use of her premises without restriction.

While other and additional points upon which plaintiff would rely to sustain her action were raised below, it is agreed by parties appellant and appellees that all that is necessary for a determination of the case upon appeal, is to resolve the question hereinbefore first set out-to interpret the restrictive language to be either a covenant running with the land for the benefit of all the owners, or to be a condition subsequent, and then apply the rules of law applicable.

Defendants contend that the restrictions referred to were not only common to each and all the lots originally conveyed by the corporation subdividing and planning the area, but that this was a part of a general plan and scheme on the part of the original grantor, clearly inferable from the character of the restrictions, to enhance the value of the addition as a high class residential area, and that such restrictions were therefore of the kind which might be enforced by each and all other lot owners within the addition.

Plaintiff argues that the restrictions constitute nothing more than conditions subsequent, made for the benefit of the original grantor himself and for which the right to impose such restrictions upon the grantee a consideration was required, as recited in the deed; that plaintiff had no actual notice of the uniformity of this restrictive language appearing in other deeds from said grantor and that she is not bound to look beyond the clear and unambiguous language of her own deed and others in her chain of title to determine what right of enjoyment in her property, if any, is denied her.

Plaintiff, at the time she purchased her property and prepared to build, had no actual knowledge of anything which would put her on notice of any claim of any restriction upon her right of enjoyment beyond that which was actually contained in the language of her own deed and others in her own chain of title, and the physical appearance of the surrounding properties in the subdivisions; the recorded dedicatory plat of said addition carried no mention of the restriction. The corporation platting, dedicating and originally selling the lots of the addition is here making no claim for right of reverter or otherwise, such defendant having defaulted in making answer.

The restriction (the covenant or condition) written into the original deed by the grantor company is as follows:

“the said party of the second part in consideration of the premises and of the sum of $1.00 to - in hand paid by the party of the first part, the receipt whereof is hereby acknowledged, for - self and - heirs, and assigns, hereby covenants and agrees with the said party of the first part, its successors and assigns, that the said party of the second part - heirs or assigns shall not erect or place upon said premises or permit or suffer to be erected or placed upon said premises or any part thereof any building or buildings other than dwelling houses and such barns and other out-houses as may be necessary in connection with the use of said premises for dwelling purposes, and no dwelling house and accompanying barns and out-buildings shall be of less value than three thousand dollars, and no such buildings shall be placed nearer than thirty feet from the property line adjoining any avenue, boulevard, street or highway in said Luna Place, nor shall any building erected or to be erected upon said premises be used as a store, saloon, tenement house or for any other purpose than as private dwelling places.

“If at any time the said party of the second part - heirs, assigns, or successors in interest or those holding or claiming there-under, shall violate any of the covenants and agreements herein contained either directly or indirectly, the title hereby granted shall revert to and revest in said party of the first part, its successors and assigns, and it the said party of the first part, its successors or assigns shall be entitled to the immediate possession of said premises. It is hereby expressly understood and agreed that the covenants and agreements herein contained are binding upon the successors, heirs, and assigns of the respective parties hereto, and that said covenants above specified shall attach to and run with the land hereby conveyed.” (emphasis ours)

Only in the event that the above language may be construed as a mere personal covenant, or as a condition subsequent, upon which the grantor only or those in privity of blood with him may rely, as distinguished from a covenant running with the land and for the benefit of all property owners within the restricted area, might plaintiff prevail. This assumes, of course, that the language is sufficiently unambiguous that oral testimony would not be needed or permitted to explain the terms.

In addition to passing upon the language and holding that it was clearly a covenant running with the land and for the benefit of all lot owners within the restricted area, the trial court also heard evidence and made findings of fact and conclusions of law supporting defendant's theory and position that it was the intention of the corporation subdividing the addition and selling to adopt a uniform plan and scheme to make this a high class residential district with like building restrictions going into all deeds from such grantor.

Appellants did not bring up by bill of exceptions any of the testimony or other evidence upon which the trial court's findings and conclusions of law in this respect were based, and therefore the question of whether the findings and conclusions are supported by substantial evidence is of course foreclosed. It has been suggested by counsel on both sides, however, that this does not become important since a proper interpretation of the foregoing language of the deed and the proper application of the law thereto will determine the issue here presented. Nevertheless, we do not confine our consideration of the question to the language of the deed alone.

[1][2] “Conditions which, if enforced, work a forfeiture of the estate are not favored in the law, and are to be construed strictly and most strongly against the grantor.” Berger v. Santa Fé College, 28 N.M. 545, 549, 215 P. 825, 826. Likewise, “conditions tending to destroy estates are not favored in law and are construed strictly.” 8 R.C.L. 1110, par. 171; and, the burden is on the party claiming to show that the restriction relied upon runs with the land. Lovell v. Columbia Nat. Life Ins. Co., Mass., 2 N.E.2d 545.

In the case of Monk v. Danna, Tex.Civ. App., 110 S.W.2d 84, 86, although holding against the right of one grantee to enforce a building restriction against another, for reasons not important in a consideration of this case, the court nevertheless recognized the doctrine that where an owner of a tract subdivides and sells under a general plan of restriction such restriction may be enforced by one grantee against another. This is upon the ground, the court holds, that there is “mutuality of covenant and consideration”, or, that it is upon the ground that “mutual negative equitable easements are created.” In the case of Eagle Bay Park Ass'n et al. v. Longstaff, 1939, 256 App.Div. 1036, 10 N.Y.S.2d 814, 815, the right to enforce such restrictions against others than the grantor was upheld without any discussion of the question whether party complained against had notice of the restriction other than such as is implied by the common restriction in all deeds in the addition. In this quite short, and not too helpful, opinion there is found, however, the broad statement that “the plaintiff's right to relief arises out of a series of deeds conveying to different parties lots in Eagle Bay Park.”

In the case of Edgewater Beach Hotel Corp. et al. v. Bishop et ux., 120 Fla. 623, 163 So. 214, relief was denied because of the general change in character of the district since the area was platted...